ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING APPELLANTS AND URGING REVERSAL

INTEREST OF THE UNITED STATES

This case presents the issue whether a person may enforce
valid regulations promulgated by the U.S. Department of Education
to implement Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d etseq. Because of the inherent limitations on
administrative enforcement mechanisms and on the litigation
resources of the United States, the United States has an interest
in ensuring that both Title VI and its implementing regulations
may be enforced in federal court by private parties acting as
"private attorneys general." Such private suits are critical to
ensuring optimal enforcement of the mandate of Title VI and the
regulations. See Cannon v. University of Chicago, 441 U.S. 677,
705-706 (1979) (permitting private citizens to sue under Title VI
is "fully consistent with -- and in some cases even necessary to
-- the orderly enforcement of the statute").

This appeal also involves the construction of regulations
issued by the Department of Education. The Department of
Education disburses over a half a billion dollars in federal
funds each year to Pennsylvania for education programs and is
responsible for administrative enforcement of Title VI
regulations against fund recipients. 42 U.S.C. 2000d-1. The
Department of Justice coordinates the enforcement of Title VI by
executive agencies. See Executive Order No. 12250, 45 Fed. Reg.
72,995 (1980). The Department of Justice also has authority to
enforce Title VI in federal court upon a referral by an agency
that extends federal assistance to an education program or
activity. This appeal may thus significantly affect both
Departments' enforcement responsibilities. The United States
participated as amicus curiae in the district court.STATEMENT OF THE ISSUES

The United States will address the following questions:

1. Whether private plaintiffs may sue a recipient of
federal funds, under 42 U.S.C. 1983 or through an implied private
right of action, to enforce the requirement, embodied in
regulations implementing Title VI, that recipients not administer
their programs in a manner to cause unjustified discriminatory
effects on the basis of race.

2. Whether plaintiffs' allegations state a claim under the
Title VI regulations.

STATEMENT OF THE FACTS

According to the allegations of the complaint, which at this
stage must be taken as true and read in the light most favorable
to plaintiffs, Pennsylvania contains 500 school districts (J.A.
37-38 ¶ 53). Pennsylvania has delegated to the Philadelphia
School District its responsibility to educate school-age children
residing in the city (J.A. 24 ¶ 20). Philadelphia educates a
predominantly non-white student body, and in fact educates nearly
half of the non-white students in Pennsylvania (J.A. 25 ¶¶ 23-24). Pennsylvania receives federal financial assistance for
education (J.A. 28-30 ¶¶ 34-35). Pennsylvania has established a
system of funding public education that depends upon a
combination of locally generated revenues authorized by the
Commonwealth (primarily property taxes), state funds, and federal
funds (J.A. 35 ¶ 47). We will discuss plaintiffs' remaining
allegations at appropriate points in the brief.

SUMMARY OF ARGUMENT

A regulation promulgated by the Department of Education to
implement Title VI prohibits recipients of federal funds from
using criteria or methods of administering their programs that
have the effect of subjecting individuals to discrimination
because of their race, color, or national origin. This valid
substantive regulation is enforceable through 42 U.S.C. 1983.
There is thus no need to resolve the question -- addressed by
this Court in Chester Residents Concerned for Quality Living v.
Seif, 132 F.3d 925 (1997), vacated as moot, 119 S. Ct. 22 (1998)
-- whether it can also be enforced through an implied private
right of action. In any event, Chester Residents correctly
implied such a private right of action, and should be reinstated
as the law of this circuit. Permitting private plaintiffs to
enforce the discriminatory effects regulation is consistent with
the statutory provisions providing for administrative review of
recipients' activities, and will further the purposes of Title VI
by assuring that persons can seek effective redress for their
injuries.

The district court erred in holding that plaintiffs'
complaint failed to allege a violation of the Title VI
regulations. The overarching allegations of the complaint are
sufficient to meet the short, plain statement of the claim
required at this early stage. Plaintiffs' complaint contains
claims that require further investigation on remand. First, that
the defendants' actions were the result, at least in part, of
purposeful race discrimination. Second, that the current funding
formula uses factors that unjustifiably shift Commonwealth
funding away from school districts with larger minority
populations. Third, that the funding system as a whole has
unjustified discriminatory effects on school districts with high
minority enrollments. Under the generous standard by which a
complaint is reviewed on a motion to dismiss, the district court
erred in dismissing this action.

ARGUMENT

I

PLAINTIFFS MAY ENFORCE THE DISCRIMINATORY EFFECTS STANDARD
CONTAINED IN THE DEPARTMENT OF EDUCATION'S

No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation
in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving
Federal financial assistance.

Section 2000d-1 provides that "[e]ach Federal department and
agency which is empowered to extend Federal financial assistance
to any program or activity * * * is authorized and directed to
effectuate the provisions of section 2000d of this title * * * by
issuing rules, regulations, or orders of general applicability."
42 U.S.C. 2000d-1. To coordinate Title VI implementation,
compliance, and enforcement activities of Federal agencies,
Congress vested the President with the authority to approve all
such regulations. Ibid. "Shortly after the enactment of Title
VI, a Presidential task force produced model Title VI enforcement
regulations specifying that recipients of federal funds not use
'criteria or methods of administration which have the effect of
subjecting individuals to discrimination.'" Guardians Ass'n v.
Civil Serv. Comm'n, 463 U.S. 582, 618 (1983) (Marshall, J.)
(quoting 45 C.F.R. 80.3(b)(2) (1964)). Following the
promulgation of the initial regulations, "every Cabinet
department and about 40 federal agencies adopted Title VI
regulations prohibiting disparate-impact discrimination."
Guardians, 463 U.S. at 592 n.13 (White, J.).

Both counts of plaintiffs' complaint alleged that defendants
violated 34 C.F.R. 100.3(b)(2). That provision prohibits the
"utiliz[ation of] criteria or methods of administration [by
recipients] which have the effect of subjecting individuals to
discrimination because of their race, color, or national origin."
This discriminatory effects regulation is within the scope of the
enabling statute. Although the Supreme Court's decision in
Guardians is comprised of six separate opinions, the proposition
that regulations prohibiting discriminatory effects are valid
Title VI implementation regulations clearly garnered the approval
of a majority of the Court. See 463 U.S. at 584 n.2 (White, J.),
623 n.15 (Marshall, J.), 642-645 (Stevens, Brennan, Blackmun,
JJ.). In Alexander v. Choate, 469 U.S. 287, 293 (1985), a
unanimous Court confirmed that "actions having an unjustifiable
disparate impact on minorities [can] be redressed through agency
regulations designed to implement the purposes of Title VI."

C. Title VI Discriminatory Effects Regulations May Be
Enforced Through 42 U.S.C. 1983

Count II of the complaint sought to enforce this valid
regulation pursuant to 42 U.S.C. 1983. In order to seek redress
through Section 1983, a plaintiff must assert that a "person"
acting under the color of state law violated a "right" secured by
federal law. See Blessing v. Freestone, 117 S. Ct. 1353, 1359
(1997). Once a plaintiff identifies a federal right, a
"presumption" of enforcability under Section 1983 arises, that
can only be rebutted "if Congress 'specifically foreclosed a
remedy under § 1983.'" Id. at 1360.

1. The district court dismissed Count II on the ground that
state officials sued in their official capacities are not
"persons" for purposes of Section 1983. While that is true when
state officials are being sued for damages, the Supreme Court has
made clear "a state official in his or her official capacity,
when sued for injunctive relief, would be a person under § 1983
because 'official-capacity actions for prospective relief are not
treated as actions against the State.'" Will v. Michigan Dep't
of State Police, 491 U.S. 58, 71 n.10 (1989) (citations omitted).
Thus, the district court's dismissal of Count II cannot be upheld
on that ground.

A majority of the Justices in Guardians clearly thought that
the disparate effects regulations were enforceable through
Section 1983. Justice Stevens, writing for himself and two
others, would have granted plaintiffs relief under Section 1983
without deciding whether there was also a private right of action
to enforce the regulations. See 463 U.S. at 638 n.6, 645 n.18
(Stevens, Brennan, Blackmun, JJ.). Justice Powell, writing for
himself and Chief Justice Burger, expressed the opinion that the
only means of enforcing the regulations would be through Section
1983. Id. at 608 n.1;(2) see also Larry P. v. Riles, 793 F.2d
969, 986 (9th Cir. 1984) (Enright, J., concurring in part) ("the
Title VI regulations in Guardians Association were enforced
pursuant to a suit under 42 U.S.C. § 1983").

3. Because Title VI does not expressly limit Section 1983
actions, defendants must make the "difficult showing that
allowing § 1983 actions to go forward in these circumstances
'would be inconsistent with Congress' carefully tailored
scheme.'" Blessing, 117 S. Ct. at 1362. Defendants argued in
the district court that the statutory provision providing for
agency enforcement of the regulations through fund cut-off and
other means precluded private enforcement through Section 1983.
But this Court rejected a similar claim in Casey, explaining that
empowering a federal agency to cut-off funds "gives no
indication" of Congress' intent "to supplant a section 1983
remedy." 885 F.2d at 22. The Supreme Court has reached the same
conclusion in its most recent Section 1983 cases. See Blessing,
117 S. Ct. at 1363 (so holding and collecting cases).(3)

Not surprisingly, this Court has permitted plaintiffs to
invoke Section 1983 to enforce regulations under schemes
patterned on Title VI. In W.B. v. Matula, 67 F.3d 484 (1995),
this Court held that Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. 794, and its implementing regulations could be
enforced through Section 1983. Id. at 494. Given that Section
504 incorporates the "remedies and procedures" of Title VI, 29
U.S.C. 794a(a)(2), there is no reason for a different result
under Title VI and its regulations.(4)

4. Defendants also suggested in the district court that
only the entity that receives the funds, not the officials who
administer the funds sued in their official capacities, are
appropriate defendants under Title VI's private right of action.
They argued that permitting suits under Section 1983 to proceed
against state officials sued in their official capacities would
permit suits against defendants Congress did not intend to be
liable.

But official-capacity suits are a pleading device for suing
the entity for whom the official works. See Acierno v. Cloutier,
40 F.3d 597, 608 (3d Cir. 1994) (en banc) ("a suit against
elected officials in their official capacit[ies] is functionally
a suit against the government entity"). Thus, it is well-established in cases brought under Section 1983 that a plaintiff
may name state or local officials in their official capacities as
defendants in lieu of (or in addition to) the state or local
entity itself. See Hafer v. Melo, 502 U.S. 21, 25 (1991);
Kentucky v. Graham, 473 U.S. 159, 165 (1985); Gregory v. Chehi,
843 F.2d 111, 120 (3d Cir. 1988). The device evolved as a means
of circumventing sovereign immunity limitations imposed on suits
directly against government entities. See, e.g., Ex parte Young,
209 U.S. 123 (1908); United States v. Lee, 106 U.S. 196 (1882).
In such suits, even though officials are the nominal defendants,
the entity is the real party in interest, and all the injunctive
relief runs against the entity. For example, if Governor Ridge
were to leave office, he would no longer be a party to the
lawsuit in his official capacity; his successor would be
automatically substituted as a party. See Fed. R. App. P.
43(c)(1). Thus, under the case law, "a plaintiff need not join
the governmental unit itself as a defendant to impose liability
against it, but may sue the individual official in his official
capacity, so long as the governmental unit the official
represents is given notice and an opportunity to be heard."
Gegenheimer v. Galan, 920 F.2d 307, 310 (5th Cir. 1991).

There is no reason why this pleading device cannot be used
in cases involving Title VI. Courts have often applied the
official capacity suit outside the realm of Section 1983. Thus,
in Balgowan v. New Jersey, 115 F.3d 214 (1997), this Court
permitted plaintiffs to sue a state official in his official
capacity for a declaratory judgment under the Fair Labor
Standards Act when the suit could not proceed against the state
in its own name. See also Welch v. Lang, 57 F.3d 1004, 1010-1011
(11th Cir. 1995) (treating suit against officials sued in
official capacity as suit against entity under Equal Pay Act and
Title VII); Garcia v. Elf Atochem N. Am., 28 F.3d 446, 451 n.2
(5th Cir. 1994) (same under Title VII); Riordan v. Kempiners, 831
F.2d 690, 694-695 (7th Cir. 1987) (Posner, J.) (same under Equal
Pay Act).

In Matula, this Court approved suing officials in their
official capacities under Section 504, a statute modeled on Title
VI. Matula involved a suit against school officials in their
individual and official capacities. This Court held that "claims
against defendants in their official capacities are equivalent to
claims against the government entity itself," 67 F.3d at 499, and
specifically noted that plaintiffs' failure to name the entity as
a defendant did not prevent them from maintaining the action.
Id. at 499 n.8. The Fifth Circuit has also specifically so held
under Section 504, see Brennan v. Stewart, 834 F.2d 1248, 1251-1252 (5th Cir. 1988); Helms v. McDaniel, 657 F.2d 800, 806 n.10
(5th Cir. 1981), cert. denied, 455 U.S. 946 (1982), and many
other courts of appeals have permitted Title VI actions to
proceed against state officials in their official capacities as a
matter of course. See, e.g., Fuller v. Rayburn, 161 F.3d 516,
518 (8th Cir. 1998).

The Eleventh Circuit is the only court of appeals that has
expressed a view to the contrary, but its jurisprudence on the
question has been inconsistent. Consistent with Matula, the
Eleventh Circuit held in Lussier v. Dugger, 904 F.2d 661, 670
n.10 (1990), that a suit under Section 504 could proceed against
state officials sued in their official capacities. However, in
Floyd v. Waiters, 133 F.3d 786, 789 (11th Cir.), vacated and
remanded, 119 S. Ct. 33 (1998), the court held that only
entities, and not officials in their official capacities, can be
sued under Title IX of the Education Amendments of 1972, 20
U.S.C. 1681 etseq., another statute patterned on Title VI.
Floyd did not explain why the general rule that official-capacity
suits are an appropriate means of bringing suit against an entity
was inapplicable to Title IX cases, and could cite no appellate
authority supporting its holding.(5) Because it contains no
persuasive analysis, and is contrary to Matula and the weight of
authority, we urge this Court to reject Floyd and find that this
action can proceed under Section 1983 against defendants in their
official capacities.(6)

D. Persons Have A Private Right Of Action To Enforce The
Discriminatory Effects Regulations

The district court held that Title VI's implied private
right of action also encompasses suits for violations of the
discriminatory effects regulation (App. 21-24). But if this
Court holds that the regulation is enforceable through Section
1983, there is no reason to reach this issue. See Jeremy H. v.
Mount Lebanon Sch. Dist., 95 F.3d 272, 278, 283 n.20 (3d Cir.
1996) (finding suit permissible under Section 1983 made it
unnecessary to decide if private right of action was available).

In any event, the district court properly followed this
Court's decision in Chester Residents Concerned for Quality
Living v. Seif, 132 F.3d 925, 937 (1997), vacated as moot, 119
S. Ct. 22 (1998), that "private plaintiffs may maintain an action
under discriminatory effect regulations promulgated by federal
administrative agencies pursuant to section 602 of Title VI of
the Civil Rights Act of 1964." Although no longer binding
circuit precedent, the Chester Residents opinion represents the
considered judgement of three appellate judges acting on what
was, at that point, a live case and controversy. It thus retains
its persuasive authority. See Polychrome Int'l Corp. v. Krigger,
5 F.3d 1522, 1534 (3d Cir. 1993); Finberg v. Sullivan, 658 F.2d
93, 100 n.14 (3d Cir. 1981) (en banc) ("Even if a decision is
vacated, however, the force of its reasoning remains, and the
opinion of the Court may influence resolution of future
disputes."). In addition, as this Court noted in Chester
Residents, its holding was consistent with every other court of
appeals to consider the issue. Id. at 936-937 (collecting cases
from the First, Second, Fifth, Sixth, Seventh, Ninth, Tenth, and
Eleventh Circuits). "In light of such an array of precedent, we
would require a compelling basis to hold otherwise before
effecting a circuit split." Wagner v. PennWest Farm Credit, ACA,
109 F.3d 909, 912 (3rd Cir. 1997).

No such "compelling basis" exists here. In the district
court, defendants and intervenors raised three major challenges
to this Court's reasoning in Chester Residents, none of which
should be found persuasive. First, defendants and intervenors
argued that because the regulations go beyond what is prohibited
by the statute, they cannot be the basis for a private right of
action. But valid regulations are often prophylactic in nature,
see United States v. O'Hagan, 117 S. Ct. 2199, 2217 (1997), and
the right of action implied from the statute can serve as a
gateway for the enforcement of such regulations. See Angelastro
v. Prudential-Bache Secs., Inc., 764 F.2d 939, 946-947 (3d Cir.),
cert. denied, 474 U.S. 935 (1985). "Such a conclusion was, of
course, entirely consistent with the Court's recognition in J.I.
Case Co. v. Borak, 377 U.S. 426, 432 (1964), that private
enforcement of Commission rules may '[provide] a necessary
supplement to Commission action.'" Blue Chip Stamps v. Manor
Drug Stores, 421 U.S. 723, 730 (1975) (emphasis added).

The courts of appeals have applied a "general rule" that a
"private right of action may be implied from administrative
regulations as well as from federal statutes, provided the
private right of action may be inferred from the enabling
statute." Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 250
n.10 (5th Cir. 1997); see, e.g., Roosevelt v. E.I. Du Pont de
Nemours & Co., 958 F.2d 416, 419-425 (D.C. Cir. 1992) (R.B.
Ginsburg, J.); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d
530, 536 (9th Cir. 1984); Ashbrook v. Block, 917 F.2d 918, 926
(6th Cir. 1990). This is consistent with the common sense notion
that "if Congress intended to permit private actions for
violations of the statute, 'it would be anomalous to preclude
private parties from suing under the rules * * *'" implementing
the statute. Angelastro, 764 F.2d at 947. Chester Residents was
correct in applying this well-established legal analysis to the
regulation at issue.

Second, defendants and intervenors argued that Section 602
sets out the exclusive means for enforcing the regulations
promulgated to enforce Section 601. But the procedural
requirements in Section 602 are designed to limit the Executive
Branch -- which some in Congress believed had an undue advantage
because of its greater resources and feared would capriciously
deny needed funds to entities -- and were not directed at actions
taken by the federal judiciary in suits by private persons after
a full hearing on the merits. If defendants and intervenors were
correct in their reading of the statute and legislative history,
then the private right of action to enforce the prohibition on
intentional discrimination (which the federal government also
enforces through the procedures laid out in Section 602) would
also be barred, a result clearly foreclosed by Cannon.

Third, defendants and intervenors attempted to diminish the
import of the legislative history of the Civil Rights Restoration
Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988), discussed
by this Court in Chester Residents. They characterized it as
"subsequent legislative history," and noted that much of the
discussion of the discriminatory effects regulations came from
opponents of the Act's expanded coverage. But Chester Residents
was following the well-accepted rule that when there is evidence
that Congress understood that a private right of action was
available under a statutory scheme, and amends the statute
without demonstrating any intent to disapprove of such suits, it
has ratified that private right of action. See Herman & MacLean
v. Huddleston, 459 U.S. 375, 386 (1983); Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 381-382 (1982); see
also Cannon, 441 U.S. at 687 n.7; Lindahl v. OPM, 470 U.S. 768,
787-788 (1985). And while much of the discussion of private
enforcement of the discriminatory effects regulations came from
opponents to the bill, "they are nevertheless relevant and
useful, especially where, as here, the proponents of the bill
made no response." Arizona v. California, 373 U.S. 546, 583 n.85
(1963).(7)

Defendants and intervenors were unable to articulate a
compelling basis for the district court to discard the holding of
Chester Residents and reject the result reached by the other
circuits that have addressed the question. Should this Court
reach the issue, it should thus reaffirm the holding of Chester
Residents.

II

PLAINTIFFS' COMPLAINT STATES A CLAIM FOR VIOLATION OF THE
DEPARTMENT OF EDUCATION'S TITLE VI REGULATIONS

A court may dismiss a complaint for a failure to state a
claim only when it is certain that the allegations, and all the
inferences fairly drawn from those allegations, cannot state a
claim under any legal theory. Hishon v. King & Spalding, 467
U.S. 69, 73 (1984). Applying this generous standard, plaintiffs'
complaint should not have been dismissed at this stage.

A complaint need only contain "a short and plain statement
of the claim." Fed. R. Civ. P. 8(a)(2). "Generally, under the
liberal notice pleading practices in federal civil cases, a
claimant 'does not have to set out in detail the facts upon which
the claim for relief is based, but must merely provide a
statement sufficient to put the opposing party on notice of the
claim.'" Foulk v. Donjon Marine Co., 144 F.3d 252, 256 (3d Cir.
1998).

After surveying defendants' practices in funding public
education in Pennsylvania, the complaint alleges that defendants'
"funding policies and practices wrongfully discriminate against
African-American, Hispanic, Asian and other minority students in
the School District by utilizing criteria and methods that have
had the foreseeable effect of subjecting such students to
discrimination because of their race, color, or national origin,
by disproportionately denying them necessary support for their
education" (J.A. yy ¶ 73). The Department of Education's Title
VI regulations proscribe "utiliz[ation of] criteria or methods of
administration which have the effect of subjecting individuals to
discrimination because of their race, color, or national origin."
34 C.F.R. 100.3(b)(2). The broad language of the regulations
encompasses complaints regarding the "criteria or methods" of
programs funding public education. See Campaign for Fiscal
Equity, Inc. v. New York, 655 N.E.2d 661, 670 (N.Y. 1995).(8)
Plaintiffs' complaint has put defendants on notice of the
circumstances that are involved in the claim, and has alleged
that defendants' actions are in violation of federal law.
Nothing more is required. See Frazier v. SEPTA, 785 F.2d 65,
66-67 (3d Cir. 1986) (federal rules permit "great generality" in
stating the basis of plaintiff's claim); Bennett v. Schmidt, 153
F.3d 516, 518 (7th Cir. 1998). By purporting to look behind
these allegations to divine plaintiffs' "actual" complaint, the
district court prematurely and inappropriately terminated the
litigation.

In their appellate brief, plaintiffs have identified several
potential theories of liability under the Title VI regulations,
each of which needs to be explored more fully on remand. We
address them briefly to explain why plaintiffs' more specific
allegations are also sufficient at this stage to support
potential claims for violating the Title VI regulation.(9)

A. Plaintiffs' Factual Allegations Support An Inference Of
Intentional Discrimination In Violation Of The Title VI
Regulation

Plaintiffs allege that defendants have in recent years
persistently changed the state revenue formula so that each year,
when the Commonwealth increases the amount of aid it distributes
to local school districts, it provides a much smaller per capita
increase in predominantly minority school districts than in
predominantly white districts (J.A. 39-40 ¶¶ 56-61). Moreover,
plaintiffs allege that the Commonwealth adopted these changes,
which have reduced each year the share of state education funds
distributed to minority districts, "with prior knowledge of
[their] discriminatory consequences on students based on race"
(J.A. 35, 40 ¶¶ 47, 59, 60). These allegations support an
inference that the Commonwealth devised and changed its funding
formula with the intent of causing disproportionate harm to
predominantly minority districts, in violation of the Title VI
prohibition on intentional discrimination.

As plaintiffs explain (Br. 35), based on these allegations,
a factfinder would be entitled to infer that defendants took
these actions, which they were aware would harm predominantly
minority districts, at least in part because of "purposeful"
discrimination. See Hunter v. Underwood, 471 U.S. 222, 231-232
(1985) (in order to show intentional racial discrimination,
plaintiffs need not show that racial minorities were the only
class intended to be burdened, or that race was the only reason
for the decision); cf. Sheridan v. E.I. DuPont de Nemours & Co.,
100 F.3d 1061 (3d Cir. 1996) (en banc) (disbelief of defendant's
proffered reasons combined with other evidence permits factfinder
to conclude that there was intentional discrimination), cert.
denied, 117 S. Ct. 2532 (1997). As the facts alleged in the
complaint could permit a factfinder to conclude that defendants
engaged in intentional discrimination, this case should be
remanded to give plaintiffs the opportunity to prove these
allegations.

B. Plaintiffs Have Alleged That The Commonwealth Provides
Funds For Education In A Manner That Has A
Discriminatory Impact On Predominantly Minority
Districts In Violation Of The Title VI Regulation

Plaintiffs allege that predominantly minority school
districts receive "less Commonwealth treasury revenues per
student than school districts with higher white enrollments and
the same level of poverty" (J.A. 37-38 ¶¶ 53-54). On its face
that states a claim that the Commonwealth is distributing its
funds to school districts in a manner that has a discriminatory
impact on the basis of race.

Intervenors asserted in the district court that
predominantly minority school districts in fact receive more
state revenues per pupil than many predominantly white school
districts, and the district court appears to have relied in part
on that assertion in finding that the complaint failed to state a
claim (App. 32). If that factual assertion could properly be
considered at this stage, which is doubtful, and if it is true,
it would nevertheless not be dispositive. Plaintiffs allege that
the state formula contains a factor that increases aid to less
wealthy districts (J.A. 36 ¶ 49), and it follows that a minority
district, if poor, might well receive more funding per capita
than a white district that happened to be wealthy. They allege,
however, that after controlling for poverty -- a factor the
Commonwealth clearly deems relevant to funding -- the formula
distributes less state revenues per capita to predominantly
minority school districts than to predominantly white districts
(J.A. 37-39 ¶¶ 53-55).

This disparity may be the result of one or more factors in
the formula, perhaps as yet unknown to the plaintiffs, with an
unjustified discriminatory impact on the basis of race.(10) This
case should be remanded so that plaintiffs have the opportunity
to discover the causes of this disparity in state funds between
predominantly minority districts and others, controlling for
poverty.

Even if predominantly minority districts benefit from a
subsidy for poverty, they may be disadvantaged on the basis of
race if other factors in the formula unjustifiedly diminish the
benefits received by minority populations. In Connecticut v.
Teal, 457 U.S. 440, 455-456 (1982), for example, the Supreme
Court held that a Title VII disparate impact suit about
promotions was not barred simply because defendants could show
that minorities ultimately were promoted at a higher rate than
whites. Instead, the Court held that plaintiffs could challenge
any portion of the promotions process that disparately excluded
minorities from consideration. The Teal holding has been applied
in Title VI disparate impact cases. See Elston v. Talladega
County Bd. of Educ., 997 F.2d 1394, 1420 (11th Cir. 1993); Meek
v. Martinez, 724 F. Supp. 888, 905-906 (S.D. Fla. 1987) (finding
that various components of funding distribution formula violated
Title VI regulations). Indeed, this Court applied Teal in a case
analogous to this one in Wilmore v. City of Wilmington, 699 F.2d
667 (1983). In Wilmore, plaintiffs challenged a promotions
process under Title VII that ranked people based on the combined
weight of three separate factors. In response to the district
court's suggestion that the disparate impact of one factor could
not be challenged because it was balanced out by the results of
another, this Court explained "[t]his reasoning penalizes
minorities for doing well on one part of the exam and overlooks
how much better their overall test results would have been if
they had not been so handicapped on that part of the exam." Id.
at 675.

Moreover, plaintiffs allege that the Commonwealth has the
duty to provide each child with an education (J.A. 24
¶ 20), that it has delegated that duty to each school district
(J.A. 24 ¶ 20), and that it has authorized and encouraged school
districts to raise monies locally through property taxes for that
purpose (J.A. 35 ¶ 47). Plaintiffs also allege that the state
system for funding education, taken as a whole, has a disparate
impact on predominantly minority school districts (J.A. 37, 39,
40, 42-43 ¶¶ 52, 56, 60, 65, 66). At least in some
circumstances, these allegations may state a claim under the
disparate impact regulation.

Any policy which may have a disparate impact may be
justified: even if plaintiffs do make that showing, defendants
have an opportunity to demonstrate "substantial legitimate
justification[s]" for the disparities. Elston, 997 F.2d at 1407.
Finally, if there is a significant racial disparity and no
legitimate justification, defendants will have the opportunity to
propose a remedial plan. Lawyer v. Department of Justice, 117 S.
Ct. 2186, 2193 (1997). Defendants are not required by Title VI
to use any particular method of funding public education. By
accepting federal funds, however, they have agreed not to
administer their program in a manner that results in unjustified
discriminatory effects.

CONCLUSION

This Court should hold that plaintiffs may sue to enforce
the discriminatory effects regulation and have stated a claim
under the regulations.
Respectfully submitted,

This brief complies with the Federal Rule of Appellate
Procedure 32(7)(B). It contains 6,990 words.

SETH M. GALANTER
Attorney

CERTIFICATE OF SERVICE

I hereby certify that on February 16, 1999, two copies of
the Brief for the United States as Amicus Curiae Supporting
Appellants and Urging Reversal were served by first-class mail on
the following counsel:

1. A substantive regulation is a one that (1) is based on a
delegation of an express grant of authority by Congress; (2)
implements the statute; and (3) "affect[s] individual rights and
obligations." Id. at 302-303. The effects regulations meet
these requirements. First, Title VI contains a "delegation of
the requisite legislative authority by Congress" to establish
substantive regulations. Chrysler Corp., 441 U.S. at 304, 305
n.35. Second, a majority of the Justices in Guardians held that
the effects regulations are a valid implementation of the
statute. Third, the rules affect the "obligations" of fund
recipients and the "rights" of persons Title VI protects.
Although not expressly applying this test, a majority of the
Justices in Guardians viewed the effects regulations promulgated
under the statute to be substantive regulations. See 463 U.S. at
643 (Stevens, Brennan, Blackmun, JJ.) (regulations "have the
force of law"), 611 n.5 (Powell, Burger, Rehnquist, JJ.)
(discussing agencies' "lawmaking power"), 613-615 (O'Connor, J.)
(analyzing regulations as "legislative regulations" that "hav[e]
the force of law").

2. Justice Powell and Chief Justice Burger's rejection of an
implied private right of action to enforce the regulation is
consistent with their position that Title VI itself could not be
enforced through a private right of action, id. at 608-610, a
position that six other Justices and this Court have firmly
rejected. Id. at 594-595 (White, Rehnquist, JJ.), 625-626
(Marshall, J.), 635-636 (Stevens, Brennan, Blackmun, JJ.); NAACP
v. Medical Ctr., Inc., 599 F.2d 1247, 1250 n.10 (3d Cir. 1979).
Thus, Justice Powell's unsupported statement on this issue is
entitled to little weight if this Court elects to revisit the
implied right of action issue discussed infra.

3. In the only two cases in which the Court has found a remedial
scheme comprehensive enough to displace the Section 1983 remedy,
Congress had created express private rights of actions that a
plaintiff could invoke. See Blessing, 117 S. Ct. at 1362-1363.
Here, by contrast, although anyone may file a complaint with the
administrative agency alleging a violation of the regulations,
the complainant is not a party to (and often times is not a
participant in) the administrative proceedings. See Cannon, 441
U.S. at 707 n.41.

4. In Matula, this Court noted that Congress had responded to
the Supreme Court's decision in Smith v. Robinson, 468 U.S. 992
(1984) -- which had held that Section 504 claims involving
education for children covered by the Individuals with
Disabilities Education Act (IDEA), as well as some constitutional
claims brought under Section 1983, were precluded by the express
right of action Congress created under IDEA -- by enacting 20
U.S.C. 1415(f), which provided that nothing in IDEA "shall be
construed to restrict or limit the rights, procedures, and
remedies available under the Constitution, title V of the
Rehabilitation Act of 1973, or other Federal statutes protecting
the rights of children and youth with disabilities." 67 F.3d at
494. That statute reversed the holding of Smith by providing
that the express cause of action under IDEA was not intended to
exclude reliance on other rights and remedies otherwise
available, thus permitting a suit under Section 504 to enforce
its provisions, and a suit under Section 1983 to enforce
constitutional rights. But nothing in that statute affected the
relationship between Section 504 and Section 1983. Thus, the
holding of Matula that Section 504 rights can be enforced through
Section 1983 cannot be distinguished from this case on the basis
of Section 1415(f).

5. The Floyd court improperly relied on Smith v. Metropolitan
School District, 128 F.3d 1014 (7th Cir. 1997), cert. denied, 118
S. Ct. 2367 (1998). Smith held that Title IX did not extend to
suits against persons in their individual capacities. Id. at
1019. But Smith also held that those officials who had
sufficient "administrative control" over a program could be sued
in their official capacities, while finding that the defendant in
that case did not have such control under state law. Id. at
1020. Accepting the allegations of the complaint in this case as
true (J.A. 26-28 ¶¶ 27-30), no such impediment exists here.
Smith also recognized, as we argue in the text, that a suit
against an appropriate official in his official capacity is the
equivalent of suing the entity itself for these purposes. Id. at
1021 n.3.

6. Pfeiffer v. Marion Center Area School District, 917 F.2d 779
(3d Cir. 1990), is not to the contrary. In Pfeiffer, this Court
held that the private right of action under Title IX "subsumed" a
Section 1983 claim to enforce the Equal Protection Clause. But
the question whether a statute precludes a constitutional claim
requires a different analysis from whether a statute contains a
sufficiently comprehensive remedial scheme to preclude
enforcement of the statutory rights through Section 1983. See
Michael A. Zwibelman, Why Title IX Does Not Preclude Section 1983
Claims, 65 U. Chicago L. Rev. 1465, 1468-1470 (1998) (contrasting
requirements). In any event, to the extent Pfeiffer could be
read to hold that the existence of a private right of action
under a statute can preclude reliance on Section 1983, it has
been significantly narrowed by later cases. See Matula, 67 F.3d
at 494 (holding that Section 504 may be enforced through a
private right of action and Section 1983); Jeremy H. v. Mount
Lebanon Sch. Dist., 95 F.3d 272, 278-279 (3d Cir. 1996)
(permitting suit to enforce IDEA rights under Section 1983
without resolving whether private right of action existed under
the statute). Moreover, that reading of Pfeiffer would only be
relevant if (contrary to defendants' contentions) there were a
private right of action to enforce the regulation.

7. Intervenors also argued that the Section 602 procedures are
needed to allow agencies to apply their expertise to the
questions presented. But courts have gained proficiency in
adjudicating disparate impact cases through experience with Title
VII and Fair Housing Act cases. And when such specialized
expertise is required, a court may request the United States to
participate as amicus curiae or ask the relevant agency to
initiate an investigation. Compare Cheyney State College Faculty
v. Hufstedler, 703 F.2d 732, 737 (3d Cir. 1983) (agencies do not
have "primary jurisdiction" over violations of Title VI), with
NAACP, 599 F.2d at 1249-1250 (district court directed agency to
review actions for compliance with Title VI), and Cannon, 441
U.S. at 688 n.8.

8. The Department of Education has made clear, in interpreting
these Title VI regulations with reference to vocational education
programs receiving federal assistance, that "[r]ecipients may not
adopt a formula or other method for the allocation of Federal,
State, or local vocational education funds that has the effect of
discriminating on the basis of race, color, [or] national
origin." 34 C.F.R. Pt. 101, App. B, Pt. III.B.

9. In the district court, the United States argued as amicus
curiae that the "benefit" provided by the Commonwealth's
financing system was an "education," see Lau v. Nichols, 414 U.S.
563, 568 (1974), and that defendants' failure to take into
account the increased cost of providing such an education in
predominantly minority school districts such as Philadelphia also
stated a claim. Plaintiffs have expressly disavowed that
argument (Br. 30), and thus we do not press it in this appeal.
See DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 731 (3d
Cir.) ("'amicus may not frame the issues for appeal'"), cert.
denied, 516 U.S. 916 (1995).

10. The fact that plaintiffs did not identify the factors in the
formula that have a disparate impact is not dispositive at this
stage of the proceedings. See Menkowitz v. Pottstown Memorial
Med. Ctr., 154 F.3d 113, 124 (3d Cir. 1998) ("a plaintiff
generally need not explicitly allege the existence of every
element in a cause of action if fair notice of the transaction is
given and the complaint sets forth the material points necessary
to sustain recovery"); cf. Wards Cove Packing Co. v. Atonio, 490
U.S. 642, 657-658 (1989) (noting that discovery will normally be
necessary to permit plaintiffs to identify with specificity
causes of disparate impact).